| Cal. | Jul 1, 1861
Baldwin, J. concurring.
Upon further examination, we are satisfied that the judgment in this case should be affirmed. The witness Travena was interested in the damages, and his release amounted to nothing more than an assignment of his interest. The fourth section of the Practice Act rendered him incompetent, and his testimony was properly rejected. The evidence in regard to the Eureka title was correctly admitted under the answer. Our former opinion was written under the impression that this title had not been pleaded. The other points made are without merit.
Judgment affirmed.
Note.—-See Grady v. Early, ante 108, where the witness was held competent. In that case, how ever, plaintiff waived damages—though the opinion does not seem to go on that ground. So that the third syllabus in that case may or may not need modifying in this particular.